R.Thirumalesh Another vs The State Of A.P., Rep By P.P ...
2022 Latest Caselaw 2546 AP

     THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

               CRIMINAL PETITION No.7453 of 2017

ORDER:

The present criminal petition is filed under Section 482 of

Cr.P.C. seeking quashment of the proceedings against the

petitioners/A.1 and A.2 in C.C.No.212 of 2017 on the file of the

Court of the Judicial Magistrate of First Class, Nandyal, Kurnool

District registered for the offence punishable under Section 420

read with 34 of I.P.C.

2. Heard learned counsel for the petitioners and learned

Assistant Public Prosecutor appearing for the 1st respondent-State

and learned counsel for the 2nd respondent-de facto complainant.

3. The case of the 2nd respondent is that he is working as

Teacher and his brother is doing paper plates business and he

used to purchase raw material from the 1st petitioner. In view of

the said business relations, acquaintance was developed between

brother of the 2nd respondent and 1st petitioner. While so, on

27.04.2012, the 1st petitioner approached the 2nd respondent and

requested him to arrange a sum of Rs.11,00,000/- as advance and

the same can be repaid within a period of two months along with

10% commission. Apart from this amount, he also arranged a sum

of Rs.5,00,000/- in the month of August, Rs.7,00,000/- in the

month of September and also Rs.6,00,000/- thereafter, totalling to

Rs.29,00,000/-. Later, in view of the demand made by the 2nd

respondent, the 1st petitioner issued a cheque bearing No.06772

drawn on Axis Bank, Nandyal for a sum of Rs.35,00,000/- and the

said cheque was dishonoured due to insufficient funds.

4. It is the case of the petitioners that the 1st petitioner received

an amount of Rs.11,00,000/- from the 2nd respondent but not

Rs.29,00,000/- as alleged by the 2nd respondent and he also

issued an empty cheque as security in view of amount received by

him. But he denied the date of cheque as well as the amount of

the cheque. In view of non-payment of the said amount, he got

executed a registered General Power of Attorney dated 26.07.2013

through his mother (2nd petitioner), who is an owner, in respect of

the vacant land admeasuring Ac.0.27 cents in Survey No.435/5 of

Panyam Village and Mandal, Kurnool District and the said G.P.A.

is registered as Document No.748/2013 dated 26.07.2013,

wherein the 2nd respondent was appointed as power of attorney to

sell and management of the said property on behalf of the

principal i.e., (2nd petitioner). After execution of the said G.P.A.,

the 2nd respondent sold away the said property as GPA holder in

favour of one K.Raj Kumar, S/o. Badullah and got executed a sale

deed vide Document No.864/2013 dated 18.11.2013 as G.P.A.

holder of original owner/2nd petitioner. Thereafter, the purchaser

Raj Kumar also alienated the said property in favour of Sri N.Pedda

Dastagiraiah, S/o. Pullaiah vide registered sale deed Document

No.7/2015 dated 05.01.2015. It is further case of the petitioners

that the 2nd petitioner acquired the subject property through a

registered sale deed from her vendor Abdul Salam, S/o. Sofi Saheb

vide Document No.1883/2011 dated 30.08.2011. Whereas the

vendor Abdul Salam acquired the said property through his vendor

vide registered sale deed dated 19.04.2010, whereas this vendor

acquired this property through their father being ancestor, who in

turn acquired the property vide title deed Document No.1888/1947

registered at SRO, Nandyal.

5. Learned counsel for the petitioners contended that the

petitioners did not commit any offence much less the offence

punishable under Section 420 read with 34 of I.P.C. The 2nd

respondent lodged the present complaint with an ulterior motive

with delay of more than 30 months from the date of alleged offence

and there is no explanation or reasons explained for the inordinate

delay to submit report. There is no element of intention of

cheating by the petitioners since they acquired the property

through registered sale deed for valid sale consideration from their

vendor in the year 2011. Whereas her vendor acquired the property

through registered sale deed in the year 2010 and the vendors of

the vendors originally acquired the property in the year 1947

through a title deed. In view of that, the flow of the title to the

subject property is passed out since 1947. As such the allegation

of the 2nd respondent that there is no land at all when he tried to

survey the land is only invented one and to lodge the present

complaint with an ulterior motive only.

6. Learned counsel for the petitioners further contended that

the subject property was alienated in favour of third parties by the

2nd petitioner through the 2nd respondent as G.P.A. holder in the

year 2013 in favour of one K.Raj Kumar, S/o. Badullah, who in

turn alienated the said property in favour of third party by name

N.Pedda Dastagiraiah in the year 2015. He further contended that

the 2nd respondent is only a GPA holder and if any loss or damage

caused to the subsequent purchaser, it is the duty of the vendor

(2nd petitioner) to indemnify such loss or damage caused to her

vendee but not the 2nd respondent. It is clarified from the

documents placed before this Court along with memo that the

subsequent purchasers, who purchased the property from the 2nd

petitioner, did not lodge any complaint against the 2nd petitioner

for committing any offence. Being a GPA holder, the 2nd

respondent is only an agent to the 2nd petitioner and he cannot

suffer ay loss or damage even though the subject property either

not identified or not available. It is a settled principle of law that a

GPA holder cannot be a property holder and he is only an agent to

the principal as such he cannot suffer anything out of the subject

property. Therefore, the ingredients enumerated in Section 420 of

I.P.C. are not at all attracted to the present case in hand and it is

nothing but abuse of process of law. Once the case is not made

out under Section 420 of I.P.C., the offence punishable under

Section 34 of I.P.C. did not arise. He further contended that the

2nd respondent lodged the complaint alleging commission of offence

under Section 420 of I.P.C. after nearly three years from the date of

execution of GPA in his favour, which is enormous delay in lodging

the said complaint and the same is also indicates that the present

complaint is lodged by him with an ulterior motive only. In

support of his case, he relied upon a judgment rendered by the

Hon'ble Apex Court in Rajiv Thapar and others Vs. Madan Lal

Kapoor1, wherein it is held that the delay in lodging complaint is a

factor in the absence of evidence and reasons for such delay. In

the said judgment, the Hon'ble Apex Court held at paragraph

Nos.25, 27 and 30 as under:

"25. Section 482 Cr.P.C. is being extracted hereunder:

(2013) 3 SCC 330

"482. Saving of inherent powers of High Court-

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."

The discretion vested in a High Court under Section 482 Cr.P.C. can be exercised suo motu to prevent the abuse of process of a Court, and/or to secure the ends of justice.

27. Recently, this Court again had an occasion to examine the ambit and scope of Section 482 Cr.P.C. in Rukmini Narvekar v. Vijaya Satardekar ( (2008) 14 SCC 1) wherein in the main order it was observed that the width of the powers of the High Court under Section 482 Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the said judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed that under Section 482 Cr.P.C. the High Court was free to consider even material that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 Cr.P.C. in the facts and circumstances of this case.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C.

30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e., the material is of sterling and impeccable quality?

30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e., the material is such as would persuade a

reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arsing therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."

Hence, the present criminal proceedings are liable to be quashed.

7. It is contended by the learned counsel for the 2nd respondent

that towards repayment of the cheque amount, the 2nd respondent

made an alternative proposal for transferring the subject property.

After acceptance of the same, the 2nd respondent herein executed a

Registered General Power of Attorney dated 27.06.2013. After

having right to transfer being G.P.A. holder/Agent in favour of

third parties, the 2nd respondent had alienated the said property in

favour of third parties as agent on behalf of 2nd petitioner. After

three years of the alienation of the subject property in favour of the

third parties, the 2nd respondent intended to survey and earmark

the land, but there is no land as per the document as such the

petitioners had committed the criminal offence. Accordingly,

F.I.R.No.214 of 2015 of Panyam Police Station was registered

against the petitioners for the offence punishable under Section

420 read with 34 of I.P.C. and after filing charge sheet, the same

was numbered as C.C.No.212 of 2017 on the file of the Court of the

Judicial Magistrate of First Class, Nandyal, Kurnool District. It is

further contended that, even though a registered GPA was

executed in favour of the 2nd respondent by the 2nd petitioner,

there is no intention on the part of the petitioners to alienate the

property in his favour to set of the amounts payable to him. As

such, he would be a property holder in due course and he suffered

loss or damage due to non-availability of the land as per the

schedule mentioned therein. In view of that the present complaint

is lodged by him and they are liable for punishment for the offence

punishable under Section 420 read with 34 of I.P.C. and it cannot

be quashed. It is also contended that there is no limitation for

initiation of proceedings in cognizable offences and the delay is

caused due to non-conduct of survey in all these years. The said

offence was found when he tried to survey the land in the year

2015. Therefore, the delay as alleged by the petitioners is not a

ground for quashment of the present C.C.

8. Having gone through the submissions made by learned

counsel for the petitioners and respondents and on perusal of the

material placed along with complaint as well as through a memo

dated 30.03.2022 filed by the petitioners, this Court is of the

considered opinion that there is an ample evidence to show that

the present complaint is filed with enormous delay and there was

no explanation on the part of the 2nd respondent for such delay in

lodging the complaint. Even though there is no limitation to bring

to the notice of the prosecution about the commission of a

cognizable offence, the circumstances and evidence should reveal

the reasons for lodging the same with such delay. The case in

hand missed the material and circumstantial evidence for lodging

the complaint with such enormous delay.

9. Based on the holistic consideration of the facts and

circumstances, this Court is prima facie satisfied that all the steps

delineated by the Hon'ble Apex Court in Rajiv Thapar's case

(supra) stand satisfied. All the steps can only be answered in the

affirmative. Therefore, this Court has no hesitation whatsoever in

concluding, that judicial conscience of the High Court ought to

have persuaded it, on the basis of the material available before it,

while passing the impugned order, to quash the criminal

proceedings initiated against the petitioners/A.1 and A.2, in

exercise of the inherent powers vested with it under Section 482

Cr.P.C.

10. Accordingly, based on the conclusions drawn hereinabove,

the Criminal Petition is allowed, quashing the criminal proceedings

against the petitioners/A.1 and A.2 in C.C.No.212 of 2017 on the

file of the Court of the Judicial Magistrate of First Class, Nandyal,

Kurnool District registered for the offence punishable under

Section 420 read with 34 of I.P.C.

Consequently, Miscellaneous Petitions, if any, pending in

this Criminal Petition shall stand closed.

______________________________________ VENKATESWARLU NIMMAGADDA, J

Date: 15.06.2022 Ivd

THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

CRIMINAL PETITION No.7453 of 2017

Dated: 15.06.2022

Ivd